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Colorblind: White-washing America

"CIR's civil rights litigation is based on the principle of
strict state neutrality: the state must not advantage some or disadvantage
others because of their race.

Race, like religion, must be placed beyond the reach of the state.
Our objections to racial preferences are legal, moral, and pragmatic.
Preferences are almost always unconstitutional when used to achieve
an arbitrary racial diversity; they are only legal when narrowly tailored
to remedy past discrimination against identifiable individuals. As
a moral matter, preferences are dehumanizing and reduce individuals
to the color of their skin. And pragmatically, racial preferences almost
always add to division and discord in society."[1]

Introduction[2]

The Center for Individual Rights (CIR) describes itself as a “nonprofit
public interest law firm dedicated to the defense of individual liberties.”[3]
Founded in 1988 by Michael McDonald and Michael Greve, both previously
at the rightist Washington Legal Foundation,[4] CIR is now an established
presence in the nation’s capital, and its influence is felt across
the country through various high-profile cases that it has taken up,
including more than a few that it has fought and won in the U.S. Supreme
Court. Over the last 14 years, CIR has grown from the 2 founders in
a small nondescript space to a swanky office with administrators, in-house
counsel, interns, high-flying pro bono lawyers, a number of publications,
and a sizeable and growing budget.

CIR is one of a number of conservative right-wing legal advocacy organizations
founded to bring legal cases in support of rightist campaigns. It has
been very successful in replicating liberal public interest law firms
such as the American Civil Liberties Union (ACLU).[5] CIR has concentrated
on specific areas of concern, and within them zeroed in on cases that
it felt would “change the law,” as opposed to simply winning
a victory. Changing the law has clearly been its goal in the area of
affirmative action, particularly in higher education. (See sidebar
page 4 on the main higher education affirmative action cases that CIR
has brought). According to Terry Carter, CIR “does go where its
plan works best”[6] which allows it to “attack affirmative
action at its weakest links . . . [and] rely in large measure on conservative
judges who go beyond the facts of individual cases to proclaim things
that have broader implications.”[7] CIR’s lawyers contend
that it has won before judges who are not conservative, but according
to journalist W. John Moore, “they concede that the appointment
of conservative judges by Presidents Reagan and Bush have made the
courts more receptive to their arguments.”[8]

As David Segal of the Washington Post reported, “[Michael] Greve
searched hard for a test case that would land in the 5th U.S. Circuit
Court of Appeals, widely considered to be a conservative bench. He
then sought plaintiffs at the University of Texas Law School, which
he had studied for months and thought was vulnerable to attack. And
he was meticulous about finding a lawyer to argue the case, recruiting
[now Solicitor-General] Theodore Olson, a pricey Washington lawyer
known for winning before the Supreme Court.”[9] For CIR, winning
the war was more important than winning a battle. The strategic nature
of CIR’s modus operandi has also been noted by lawyer Idris Diaz,
who writes that, “In all of CIR’s university admissions
cases, the lead plaintiffs have been White women, a strategic decision
that in the court of public opinion undercuts arguments that affirmative
action has primarily benefited this group. Yet CIR has hardly been
an ally of the women’s movement.”[10] In 2000, it successfully
contested the constitutionality of parts of the Violence Against Women
Act in the U.S. Supreme Court.[11] In two other cases, Boulahanis v.
Board of Regents, Illinois State University, and Miami University Wrestling
Club v. Miami University, CIR defended men’s sports teams that
had been eliminated to achieve participation proportional to the population
of women and men at those universities.[12]

The pick and choose strategy CIR has employed with regard to cases
is not new. Ironically, it mirrors the National Association for the
Advancement of Colored People (NAACP) Legal and Educational Defense
Fund’s struggle—led by [later Justice] Thurgood Marshall—to
overturn racial segregation and “separate but equal” laws
in the 1940s and 50s, culminating at the U.S. Supreme Court in Brown
v. Board of Education.[13] CIR’s staff has adopted, and adapted,
that basic strategy to argue that the U.S. Constitution should allow
only legislative policies and institutional practices that are “colorblind.” In
an ideal world, colorblindness, if understood as “not discriminating
on the basis of race,” is certainly a value that progressives
would espouse. But our society and our system are far from approximating
that ideal. Just because we have dismantled Jim Crow laws and apartheid-style
legalized segregation does not mean that we have achieved genuine racial
equality or justice. Racism is not manifest simply in the attitude
or act of one individual toward another. It is deeply imbedded in our
system and structures—giving rise to the concept of “institutional
racism.”

In a society and system that is institutionally racist, and where
simply being White means having privilege, being colorblind actually
results in being “snowblind.” Journalist and professor
Robert Jensen notes that, “White privilege, like any other social
phenomenon, is complex. In a white supremacist culture, all white people
have privilege, whether or not they are overtly racist themselves.
There are general patterns, but such privilege plays out differently
depending on context and other aspects of one’s identity.”[14]
White privilege does not ignore issues of class or gender. As activist
Sharon Martinas reasons, “Non-ruling class white people are both
oppressed and privileged. They are oppressed most significantly on
the basis of class, gender and sexuality, and also on the basis of
religion, culture, ethnicity, age, physical abilities and politics.
At the same time, they are privileged in relation to peoples of color.”[15]

Snowblindness: Institutional Racism in the United States

Institutional racism is a term coined by progressives in the 1960s
to capture the way in which “racial inequality is built into
the structure of American politics and social arrangements. Institutional
racism goes beyond individual racist ideology and acts. It pervades
the ‘normal workings’ of social, economic, political, religious,
legal, and medical institutions, systematically placing people of color
at a disadvantage. It is in the practices and procedures of these institutions
that status and opportunities for people of color are constructed unequally.”[16]
As Black lesbian feminist writer and activist Barbara Smith observes, “Racism
is not primarily a set of negative attitudes or behaviors on the part
of individual whites. These negative attitudes and behaviors are grievous
and sometimes fatal, but they are in fact symptoms of a system whose
purpose is not merely to make people of color feel badly, but to maintain
white power and control.”[17] Power and control are not always
achieved or maintained through numerical strength but through the construction
and preservation of a biased system. “For instance, Whiteness
in the context of institutionalized racism affords members of the ‘White
race’ dominance in settings as different as the contemporary
United States and apartheid South Africa.”[18]

Institutional racism is certainly not unique to the United States,
and is found in similar forms from Britain to Brazil. In other world
regions, such as South Asia, institutional oppression takes different
yet similar forms. In India, where institutional casteism is manifest
in the systemic discrimination against Dalits[19] and “lower” castes,
religion also becomes a terrain for discrimination with the institutionalized
oppression of Muslims and other religious minorities. It was institutional
casteism that Bhimrao Ambedkar, the architect of India’s Constitution,
was concerned about while steering that document through the Indian
Constituent Assembly:

“. . . we are going to enter into a life of contradictions.
In politics we will have equality and in social and economic life we
will have inequality. In politics we shall be recognizing the principle
of one man, one vote, one value. In our social and economic life, we
shall by reason of economic structure, continue to deny the principle
of one man, one vote. How long shall we continue to deny equality in
social and economic life? If we continue to deny it for long, we will
do so by putting our democracy in peril.”[20]

Ambedkar could as easily be talking about institutional racism in
the United States. A classic example of institutional racism in the
United States is “the contrast between an inner city public school,
which tends to have a higher proportion of [usually lower income] students
of color, with a suburban public school which is apt to have a majority
of [usually higher income] white students. In an inner city school
class sizes tend to be larger, textbooks are often unavailable or outdated
and buildings tend to be older and in need of repair. In wealthier
suburban schools, on the other hand, class size tends to be smaller,
textbooks are usually up-to-date and available and the facilities are
generally maintained. Meanwhile graduates are held to the same standard
without regard for the unequal preparation that different educational
environments create.”[21] While in theory public education is
the same for all, in reality—despite desegregation—it is
anything but equal.

Rac[e]ing the Right

Institutional racism is purposefully located within the Right’s
analytical blind spot. For the Right, colorblindness means a neutral
and equalizing gaze that focuses on individuals and not on groups.
In the United States, where individualism is a much-celebrated theme
in the national myth, this focus on the individual extends beyond rightist
libertarians to the Right as a whole. Yet, the emphasis on individualism
also creates contradictions within the Right. The Christian Right celebrates
collectivities such as the “family” or Christians, particularly
in the context of its claims about declining morality. Similarly, the
Extreme Right underscores race, and therefore racial groups.

Race does not occupy the same position in the worldview of different
sectors of the Right, though it is always central to the racist Extreme
Right. Scholars on the Right most often dismiss the very idea of institutional
racism or treat it as having no merit, arguing that racial incidents
and outcomes are always and merely a problem between individuals. Dinesh
D’Souza, for example, writes that, “‘Institutional
racism’ refers to merit standards of hiring and promotion that
fail to produce proportional outcomes for minorities.”[22] For
the most part, groups on the Right allege that “racism is a thing
of the past: specifically, that both legally-sanctioned (de jure) discrimination
and the informal practices of de facto discrimination have been corrected.”[23]
However, where the Old Right is overtly racist, the New Right in the
post-Civil Rights era obscures its racism behind the coded language
of “states’ rights” and “colorblindness.” Amy
Ansell argues that the New Right’s racism is a “new racism,” which
is characterized by “the abandonment of a commitment to equality
and a redefinition of the principle of fairness.”[24] The Right
argues that, because racism has been dealt with as a result of the
Civil Rights Movement, race should not be a consideration for hiring
in employment or for admission to educational institutions, and group
identities other than “American” are immaterial.

According to the Right, identity politics and pluralism weaken American
culture. Professor David Brudnoy, while acknowledging the multi-ethnic,
multiracial, and multireligious character of the United States, finds
that, “We barely retain our all-embracing values, owing to the
multiculturalists’ ideological derision of Americanism, adoration
of the exotic, and sneering of the unity that was our melting-pot goal.
. . . Uni-culturalism is essential if we’re to remain recognizably
America, but we’re in full retreat from it.”[25] There
is usually no acknowledgement in such contentions that the Right’s
construction of the archetypal “All-American” is White,
heterosexual, and Christian.

Where racism exists in the form of individual prejudice, the Right
often advocates “racial reconciliation.” So, groups within
the Christian Right, such as the Promise Keepers, which has taken the
lead in reconciling the races, call upon individual Whites to repent
and discard their prejudice, and to embrace people of color as their
fellow Christians. As Andrea Smith, a Native American progressive activist,
writes, “The basis of race reconciliation is, of course, Christianity.
White evangelicals embrace race reconciliation only with those groups
they see as sufficiently Christian.”[26]

In the Right’s view, affirmative action and other programs
designed to address institutional racism (and sexism and heterosexism)
become both unnecessary (since racism doesn’t exist except in
individual personal action or thinking), and unjust (since they do
not discount race and consider individual merit alone).[27] Using polemical
and divisive tactics, the Right attacks affirmative action as “racial
quotas,” “preferential treatment,” and “reverse
discrimination.”[28] It cynically takes the language of the Civil
Rights Movement, including the words of Dr. Martin Luther King, Jr.,
himself, to argue that individuals should be judged by their merit
and character and not by their skin color. It contends that since racism,
when it does occur, is between individuals, any remedy should be aimed
at those individuals who can be identified as having directly suffered
an act of racism. And, it also warns that preferential treatment accorded
to a particular ethnic or racial group will create resentment among
others (read Whites). These arguments fleshed out early on by the Neoconservative
scholar Nathan Glazer in his 1975 book, Affirmative Discrimination,[29]
are the foundation of CIR’s opposition to affirmative action;
and also form the underpinnings of the attack on affirmative action
by the Right as a whole. Legal challenges to affirmative action, diversity,
and a progressive higher education are only one aspect of the Right’s
concerted efforts to change the face of education. Scholar Ellen Messer-Davidow
has researched the well-coordinated broader attack on campuses and
higher education institutions across the United States, involving conservative
student, alumni, and faculty groups, publications, financial support,
influential columnists, intellectuals, and policy-makers.[30]

Jerome Himmelstein, a scholar of the U.S. Right, has documented the
development of the successful, although difficult, synthesis of traditional
conservatism and libertarianism manifest in the emergence and triumph
of the New Right in the last three decades of the 20th century.[31]
The New Right blended “a militant anticommunism with a libertarian
defense of pristine capitalism and a traditionalist concern with moral
and social order.”[32] This was a natural outcome of an “an
ideological division of labor that had developed within conservatism
that directed the traditionalist emphasis on moral order, community,
and constraint to the social issues while the discussion of economic
issues stressed mainly libertarian themes of individualism and freedom.”[33]
Despite that division, “Right-wing libertarians are reactionaries
who are vicious in their condemnation of liberal programs for social
justice, sharing with the larger Right their abhorrence of liberalism.”[34]

Libertarianism: Atomizing Society

CIR’s conservatism primarily stems from libertarian roots. In
its self-description it acknowledges that, “Its name was chosen
to underscore that its objective would be to defend individual liberties,
broadly understood to encompass both civil and economic rights . .
. [and that it] offered conservative, libertarian and moderate attorneys
in for-profit firms an opportunity to bring about meaningful legal
change and to contribute to the principled defense of individual liberty
in court.”[35] Libertarianism—right-wing libertarianism
in this case—accords the individual primacy over society and
the State.[36] In so doing, it melds an antigovernment perspective
with pro-free market fervor. The antipathy towards State intervention
in the economy is matched by a rejection of State intervention in society.
The State is simply required to maintain the minimum law and order
that would allow the market free reign, and would enable individuals
to exercise free will in society. Beyond that the State should not
be in the business of regulating society or the economy.

Researcher Jean Hardisty has written previously in The Public Eye
that, “Libertarians view all government programs as coercive
and prefer existing inequality to government programs designed to decrease
that inequality.”[37] While government programs, and often government
action, are regarded as coercive and harmful by many on the Right,
what is not recognized by them is that “What constitutes ‘harm’ is
. . . determined by the state and the law; and the state and the law
. . . define harm in the shadow of the dominant ideology of power.”[38]
Essentially, those who control the State make the laws, and it is they
who define what harm (and therefore harmful) is, and what it is not.

In Hardisty’s words, “Libertarians are often criticized
for a heartless indifference to the social contract, or any other civic-minded
concern for the larger social good . . . [to which they] respond with
their notion of ‘civil society,’ which they claim is nurtured
by libertarianism more successfully than by any other political ideology.”[39]
But in this “free-for-all competitive private sector they call
civil society, libertarians show no concern for a level playing field.”[40]
In this context, “equal before the law” means neither equal
opportunity, nor equal results. The State must not actively discriminate
against any individual—true. But neither should it be engaged
in creating the exact same opportunity for all individuals, or in ensuring
that all individuals get the exact same results. Libertarians would
argue that individuals have free will, and with the government providing
minimum law and order the freedom to avail of opportunity.

This is far less than the liberal definition of equal opportunity,
in which the government has a role in ensuring that equal opportunity
exists in fact, not simply in theory. Many progressives would argue
for further strengthening the liberal equal opportunity concept, by
adding feminist theorist Martha Nussbaum’s idea of “basic
capability,” grounded in what Professor Jyl Josephson calls “equal
respect.”[41] Recognizing that there cannot be a completely level
playing field unless one begins from a clean slate, a just society
ensures that each individual has the basic capabilities to avail her/himself
of equal opportunity. Such basic capabilities would include health
care, adequate food and shelter, security, freedom of movement, and
freedom from discrimination.[42]

Equal Protection: Unequal Causes, Unequal Effects

CIR, and the Right in general, invoke the Equal Protection Clause
and civil rights laws while attacking affirmative action.[43] The Equal
Protection Clause (Section 1 of the 14th Amendment to the U.S. Constitution)
reads:

All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and
of the state wherein they reside. No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

The 14th Amendment, along with the 13th and 15th Amendments (which
ended slavery and gave African-Americans the right to vote) was one
of three post-Civil War additions to the U.S. Constitution. Over the
years, the U.S. Supreme Court has elaborated three standards of review,
under the Equal Protection Clause of the 14th Amendment, for determining
the constitutionality of laws, policies, and programs.[44] First, the
class or category of individuals being affected is examined. Race,
ethnicity, and religion are considered inherently suspect classifications—because
they are categories that historically have been the basis for discrimination.
In cases where these categories are involved, the Court uses “strict
scrutiny” to determine that the law or policy serves a “compelling” government
interest, and that it is “narrowly tailored” to serve that
interest or to remedy actual discrimination.

Affirmative action policies, because they involve race, are reviewed
under this standard.[45] CIR, in appealing the decision in Smith v.
University of Washington Law School (see sidebar page 5 for case) asked
the U.S. Supreme Court to consider whether, under the 14th Amendment’s
Equal Protection Clause, diversity itself was “a compelling government
interest sufficient to meet strict scrutiny,” with regard to
affirmative action programs.[46] The Supreme Court declined to hear
that appeal in May 2001.[47] This does not imply that the Rehnquist
Court necessarily views diversity to be a compelling State interest;
but it might simply be waiting for a more significant case, or a more
opportune moment, before putting the issue on its docket. In fact,
civil rights activists, fearful of how the majority on the Rehnquist
Court might come down on the issue of diversity have at times moved
to settle cases out of court to prevent them from reaching the bench.[48]

One such case is Board of Education of the Township of Piscataway
v. Taxman, which was accepted by the U.S. Supreme Court in 1997. In
1989, the Piscataway, NJ, school board eliminated a position, as a
result of which Sharon Taxman (a White teacher) lost her job, while
Debra Williams (an equally qualified Black teacher with the same seniority)
kept hers. The school had cited diversity (Williams was the only minority
teacher in her department) as the rationale for its decision. Taxman
won the case in the lower courts, including the U.S. Court of Appeals
for the Third Circuit. The school appealed the decision to the U.S.
Supreme Court. The high-profile case roped in a number of supporters
on both sides who filed amicus curae (friend of the court) briefs.
Supporting Taxman were groups like the National Association of Scholars
(an organization of rightist academics), and the first Bush Administration,
which filed a brief at the lower court level, while the Clinton Administration
filed a brief along with 25 higher education groups urging the Supreme
Court not to issue a broad ruling on diversity applicable beyond that
single case.[49]

Equal protection does not mean that the government is required to
treat all people equally, across the board.[50] Discrimination based
on age (requiring someone to be a minimum age to be able to drink or
drive for instance), social or economic status, fall within a “minimum” scrutiny
range. A third standard, that of “heightened” scrutiny
is used in cases of gender-based discrimination, where the government
is required to show that the policy or law has a “substantial” relationship
to an “important” government interest.[51] Author Carl
E. Brody, Jr., writes that the Supreme Court “should understand
the historical context motivating the enactments of the Fourteenth
Amendment and the 1964 Civil Rights Act . . . [and] should affirm the
underlying rationale for affirmative action programs and return to
a more lenient level of scrutiny when analyzing these programs.”[52]
Justice Brennan and three other justices argued similarly in the Bakke
case. (See sidebar page 4).

Critical Race theorist Neil Gotanda also critiques the use of colorblind
constitutionalism in the “strict scrutiny” employed by
the Supreme Court (and advocated by the Right) with regard to affirmative
action.[53] Colorblindness ignores the reality that, “While the
social content of race has varied throughout American history, the
practice of using race as a commonly recognized social divider has
remained almost constant.”[54] Gotanda argues for a more nuanced
view of race, including a three-fold definition that helps us understand
better the substance of the racial classification. The first is “status-race,” which
takes into consideration the different social status accorded to individuals
based on their skin color. In the pre-Civil War era the inferior status
of African-Americans was legal, but now the Court endures “the
legacy of status-race only in the private sphere.”[55] What this
means is that private citizens are free to interact or not with whom
they choose, whereas the State cannot exclude people based on race.
The illustrative case of status-race is the 1857 U.S. Supreme Court
decision in Dred Scott v. Sandford, which found the inferior status
of African-Americans to be implicit in the U.S. Constitution.[56]

“Formal-race,” Gotanda’s second type, assumes that
there is no connection between race as a classification and the social
status or historical experience of racial groups.[57] The majority
opinion in the 1896 U.S. Supreme Court decision Plessy v. Fergusson
exemplifies formal-race thinking, wherein separate but equal segregation
was deemed to be constitutional because it was considered racially
neutral.[58] Gotanda writes that formal-race is the category used by
the current majority on the Supreme Court in cases ranging from affirmative
action to voting rights.[59] Gotanda’s third type, “historical-race,” takes
into account the vastly different historical experiences that racial
groups have had in the United States, and in so doing accounts for
the oppression and inequality suffered by African-Americans and other
groups.[60] Justice Thurgood Marshall’s opinion, in his 1978
dissent in Regents of the University of California v. Bakke, acknowledged
that racial classifications are not neutral and that they “describe
relations of oppression and unequal power.”[61]

In the case of affirmative action, Gotanda points out, proponents
of colorblindness “equate race with formal-race.”[62] In
a conservative perspective neither the historical experience of past
discrimination against a group, nor the contemporary reality of institutional
racism where discrimination continues in a different and more insidious
fashion, is relevant. Thus, remedial programs like affirmative action
are meaningless.

Affirmative Action on Trial

Affirmative action cases, particularly those pertaining to higher
education, are the basis of CIR’s claim to fame. In the case
of affirmative action in higher education, all roads lead to the Regents
of University of California v. Bakke, 538 US 265 (1978). The Bakke
decision, as it is known, remains controversial. Because the justices
split in multiple ways to arrive at different decisions on various
aspects of the case, it left Justice Powell’s views on diversity
open to divergent interpretation by lower courts since then. This decision
is at the root of CIR’s challenge to affirmative action programs,
and to diversity as a compelling State interest in the four major cases
it has fought on the issue. The cases are: Hopwood v. Texas, 78 F.
3d. 932 (5th Cir. 1996) against the University of Texas Law School;
Gratz v. Bollinger, 135 F.Supp.2d 790 (E.D. Mich. 2001) against the
University of Michigan; Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D.
Mich. 2001) against the University of Michigan Law School; and Smith
v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000)
against the University of Washington Law School.

Professor Margaret Burnham explains, in the sidebar on page 4, the
decisions in the Bakke case and the four CIR cases, with reference
to the issue of diversity in higher education as a compelling government
interest. In Bakke, Justice Powell had ruled that diversity was a compelling
interest, within the limits of “strict scrutiny.” Further,
his opinion was that while the University of California/Davis plan
did not meet “strict scrutiny,” affirmative action in higher
education per se was not unconstitutional. The Hopwood decision in
Texas rejected Justice Powell’s opinion, and argued that it did
not reflect the majority view. The Michigan cases fell on either side
of the diversity debate, with Gratz agreeing and Grutter disagreeing
with Justice Powell. In May 2002, the full bench of the Sixth Circuit
Court of Appeals overturned Grutter in a 5-4 ruling with the majority
agreeing that diversity was a compelling interest. In the state of
Washington, Smith completely agreed with Justice Powell. This divergence
on diversity is bound for the U.S. Supreme Court, where the Court most
likely will decide if diversity in higher education is a compelling
State interest.

Extracurricular Activities

Theodore Cross, editor of the Journal of Blacks in Higher Education,
notes that, CIR’s zeal in whipping up support for its anti-affirmative
action crusade raises “serious questions of legal ethics.”[63]
In January 1999, CIR took out full-page advertisements in 14 major
college and university student newspapers, claiming “Almost Every
University in the Country Violates Federal Law.”[64] The advertisements
went beyond this claim and “urged students to sue their colleges
for racial discrimination.”[65] They also mentioned free handbooks
on how students could begin a lawsuit, told them how to research their
claims, how to look for lawyers who might help them, and urged them
to file suits even without proof of discrimination.[66]

Cross contends that, “the most reprehensible of the new extralegal
tactics of the CIR was its publicized charges that private universities
were violating federal law. The CIR created this false impression by
planting its charges of university lawbreaking in student newspapers
at some of the nation’s most prestigious private universities
such as Columbia, . . . and the University of Chicago.”[67] Yet,
as Idris Diaz notes, “CIR officials also assert that they do
not object to consideration of race by private institutions, such as
Harvard.”[68]

Curiously, while CIR’s ads implied that private universities
might be engaged in discrimination, it filed an amicus curae brief
in another significant case defending the right of a private organization
to do exactly that.[69] James Dale, an openly gay man who filed suit
against the Boy Scouts for discrimination when the organization dismissed
him as a scoutmaster, had won his case in the New Jersey Supreme Court.
CIR joined the Boy Scouts’ appeal at the U.S. Supreme Court along
with conservative and libertarian right-wing groups such as the Eagle
Forum, the Independent Women’s Forum, the Cato Institute, the
Texas Justice Foundation, the Southeastern Legal Foundation, and the
Association of American Physicians & Surgeons. In June 2000, a
5-4 majority on the U.S. Supreme Court agreed that the Boy Scouts organization
was within its 1st Amendment rights to exclude Dale.[70]

In his opinion written for the dissent, Justice Stevens stated:

“It is plain as the light of day that neither one of these principles—‘morally
straight’ and ‘clean’—says the slightest thing
about homosexuality. Indeed, neither term in the Boy Scouts’ Law
and Oath expresses any position whatsoever on sexual matters. . . .
Surely there are instances in which an organization that truly aims
to foster a belief at odds with the purposes of a State’s antidiscrimination
laws will have a First Amendment right to association that precludes
forced compliance with those laws. But that right is not a freedom
to discriminate at will, nor is it a right to maintain an exclusionary
membership policy simply out of fear of what the public reaction would
be if the group’s membership were opened up. It is an implicit
right designed to protect the enumerated rights of the First Amendment,
not a license to act on any discriminatory impulse.”[71]

Justice Stevens went on to recall the words of Justice Brandeis: “We
must be ever on our guard, lest we erect our prejudices into legal
principles.”[72]

CIR’s challenge to affirmative action has gone beyond universities.
It has also contested affirmative action in the area of federal government
contracts on behalf of its corporate client in DynaLantic Corp v. U.
S. Department of Defense, which is pending in the D.C. circuit, and
in an amicus curae brief in the Adarand Constructors Inc., v. Mineta
case which was dismissed by the U.S. Supreme Court last November. The
Adarand issue first came before the U.S. Supreme Court in Adarand Constructors
Inc., v. Pena in 1995, when a 5-4 majority ruled that affirmative action
in federal contracting must meet “strict scrutiny.” The
Court had then sent the case back to the lower courts to determine
if the Department of Transportation’s highway program met those
standards. The Tenth Circuit ruled that it did, following changes initiated
by the Clinton Administration. The Mountain States Legal Foundation
and its client Adarand Constructors Inc., appealed that decision to
the Supreme Court, which dismissed the appeal.[73]

“Show Me the Money!” Strategic Support for Conservative
Causes

Fighting such high-profile cases in federal courts is expensive,
even when the lawyers do it pro bono. The funds, however, have been
pouring in. By its own account, “CIR's budget was a modest $220,000
during its first year of operation, mostly in grants from a handful
of conservative foundations.”[74] Grants and contributions rose
from little less than $500,000 in 1992 to almost $900,000 in 1996.[75]
CIR’s 1998-1999 annual report showed income from grants and contributions
in 1998 to be over $1.5 million; while in 1999 it also received a one-time
bequest of $1.4 million in addition to contributions and grants of
over $1.3 million.[76] Some of the conservative foundations that have
contributed to CIR are the Lynde and Harry Bradley Foundation, the
Carthage Foundation, the Smith Richardson Foundation, the Randolph
Foundation, the John M. Olin Foundation, the Adolph Coors Foundation,
and the Scaife Family Foundation.[77] In 1997 almost half of CIR’s
budget was covered by the first five, with Olin alone accounting for
$200,000.[78] All of these foundations are major donors to a variety
of right-wing causes and institutions.

CIR has also received funds from the racialist Pioneer Fund in New
York that has funded “leading Anglo-American race scientists
such as Linda Gottfredson, J. Philippe Rushton, and Arthur Jensen.”[79]
The Institute for Democracy Studies reports that Pioneer’s grantees
have included “Florida State University psychology professor
Glayde Whitney, who has sought to ‘prove’ that blacks are
genetically inferior.”[80] Journalist Courtney Leatherman observes
that the $30,000 Pioneer gave to CIR is listed in CIR’s financial
disclosure statement as a donation from the fund’s president,
Harry F. Weyher.[81] According to Leatherman, “That is the only
gift from a foundation listed that way. Mr. Greve says the omission
of the foundation’s name was an oversight, not an effort to hide
anything.”[82]

In the 1990s particularly, right-wing foundations targeted a broad
range of institutions and groups that are involved in policy research,
advocacy, and implementation in the areas of education, economics,
foreign affairs, media, and the law.[83] Commenting on the strategic
funding by conservative foundations in a report for the National Center
for Responsive Philanthropy, Sally Covington observes, “The foundations
provided substantial support, much of it on an unrestricted basis,
to build and sustain strong institutions . . . [with] the percentage
of grants awarded as general operating support [being] the highest
among nonprofit law firms, with 62 cents out of each dollar awarded
to support their general operations.”[84] Strategic funding also
has meant that awards have been concentrated among a small number of
rightist recipients and “heavily directed to national policy
and advocacy institutions in recognition that the national policy framework
greatly affects conditions, issues and decisions at the state, local
and neighborhood level.”[85] Additionally, funders “targeted
grants across the institutional spectrum in recognition that a variety
of institutions and reform strategies are required for broad-based
social transformation and policy change.”[86] And the changes
across the board have been far-reaching, as they have in the legal
arena.

Conclusion: “Death by a Thousand Cuts”

In 1995 CIR’s Michael Greve wrote: “I’m vastly
more optimistic than I was even five years ago. The debate and the
law have moved much, much faster than we had any reason to hope, and
I’m fairly sanguine that the momentum will continue to go in
our direction. It will be the death by a thousand cuts.”[87]
CIR’s goal, ultimately, is to effect policy change that would
put societal attitudes on the “right” track towards a “colorblind” America.
And it has chalked up an impressive record in the areas in which it
has concentrated its efforts and resources. However, its successes
in some high profile cases, including those on the issue of affirmative
action, cannot be divorced from the larger social and political reality
progressives confront in 2002. It is now commonplace to observe that
the United States as a society has moved rightwards. What is debatable,
though, is how much and why.

While the reasons for this rightward shift are far too complex to
analyze fully in this article, it is clear that in part it is a reaction
to the achievements of progressive socio-political movements including
the Civil Rights Movement, the Women’s Movement, and other struggles
for gender and sexuality rights, economic and racial justice, and the
environment. Additionally, corporate-led globalization and the economic
uncertainties that have come with it, and the cultural globalization
of the United States through demographic change, have been factors
in allowing right-wing ideas to gain popularity. For instance, various
sectors of the Right have actively recruited support using nativist,
jingoist, and anti-immigrant arguments.[88] All of the above are particularly
true vis-à-vis the resurgence of right-wing populism, a common
thread in the various sectors of the political Right in the United
States.[89] Since September 11th, the United States has witnessed a
resurrection of nativism and nationalism that both reflects and contributes
to this move to the right.[90]

The rightward march is also evident in the legal arena (See sidebar
on page 9). The emergence and rapid growth of the Federalist Society
for Law and Public Policy Studies, which has gained enormous influence
in conservative administrations like the current Bush Administration,
for whom it has handpicked many judicial candidates, is an important
feature;[91] especially now in light of reports that the Bush White
House is eliminating the traditional consultative role played by the
nonpartisan American Bar Association in the selection and nomination
of judges for the federal judiciary.[92] Ronald Reagan’s two
terms as president, followed by former President George Bush, saw the
large-scale appointment of conservative judges at all levels of the
federal judiciary in the United States.[93] President Clinton’s
two terms were marked by his inability to appoint judges to many vacancies
in the federal courts—in part because of his administration’s
preoccupations in other areas, and in part because many of his appointments
were blocked by the Republican-controlled Senate.[94]

George W. Bush now has the opportunity to continue where Reagan left
off, including possibly ensuring a comfortable conservative majority
on the Supreme Court.[95] Another factor in the move to the right is
the enormous financial resources being granted by right-wing foundations
and moneyed individuals to ensure that conservative ideas and policy
prescriptions are implemented. Cass Sunstein, writing in the New York
Times, notes that, “In the last 30 years, one glaring difference
between Republicans and Democrats has been that Republicans, unlike
Democrats, have been obsessed with the composition of the federal judiciary.”[96]
CIR is but one political instrument in the Right’s toolkit to
make the most of an increasingly hospitable judiciary.

It is important to recognize, however, that the move to the right
is not inevitable. Although the Right has mobilized resentment against
government, liberalism, and all progressive movements, it can, and
must, be countered. In challenging this right-wing resurgence, progressive
and liberal groups and individuals need to simultaneously bridge the
divides of class, gender, sexuality, age, and ability, along with the
chasm of race. Further, if as progressives, and as a society, we are
to overcome racial, gender, and other forms of social injustice, then
we cannot ignore or cover up race, gender, sexuality and other identifiers
that are the basis for oppression and injustice. Scholars Lani Guinier
and Gerald Torres propound a “concept of political race [that]
captures the association between those who are raced black—and
thus often left out—and a democratic social movement aimed to
bringing about constructive change within the larger community.”[97]
Comparing race to a miner’s canary that warns the miner of impending
danger through its death, Guinier and Torres write that the canary’s
death diagnoses the necessity for a more systemic critique. Their concept
of political race they contend, however, goes beyond diagnosis in being “aspirational
and activist,” and in attempting to “construct a new language
to discuss race, in order to rebuild a progressive democratic movement
led by the people of color and joined by others.”[98]

If we are not to be snowed under by the dominant discourse of colorblindness,
it is imperative that progressives understand the way race is appropriated
and used by the Right to further its agenda. In this context, we must
pay particular attention to the manipulation of the law, the institutions
that administer laws, and the people and dynamics that make and define
both. That includes groups like CIR. This means that the Progressive
Movement must also support its legal sector with more financial resources,
more advocacy organizations, and more committed lawyers, while working
to ensure that the rightward tilt in the judiciary is reversed.

[1] See “Civil Rights” within the Mission section of CIR’s
website. http://www.cir-usa.org/civil_rights_theme.html

[2] The author would like to thank Chip Berlet, Margaret Burnham,
Pam Chamberlain, Jean Hardisty, and Faith Smith for comments and suggestions,
and Betty Furdon for help with obtaining research materials.

[3] See the Mission section of CIR’s website. http://www.cir-usa.org/mission_new.html

[4] The Washington Legal Foundation is also a conservative public
interest law firm that emphasizes the free market. Its advisory board
includes (or has included) Ted Olson (George W. Bush’s solicitor-general,
who was his lawyer in the Florida ballot case against Al Gore), Haley
Barbour (former chair of the Republican National Committee), Former
Governors Tommy Thompson (R-WI), George Allen (R-VA), and William Weld
(R-MA), Dick Thornburgh (George Bush’s attorney-general), and
Rep. Tom Campbell (R-CA). See Derk Arend Wilcox, The Right Guide: A
Guide to Conservative, Free-Market, and Right-of-Center Organizations
(Ann Arbor, MI: Economics America, 2000), pp. 343-344.

[5] See the section “A Brief History of CIR” on its website.
http://www.cir-usa.org/history.html

[11] In this case, United States v. Morrison, the Supreme Court ruled
in May 2000 that Congress had overstepped its authority with regard
to the tort remedy in VAWA, whereby women could sue their attackers
in federal courts under the Commerce Clause. The Commerce Clause gives
Congress power to regulate inter-state commerce. The Court ruled that
gender-based violence against women did not adversely affect inter-state
commerce thereby disallowing Congress the use of the Commerce Clause
to justify the tort remedy. Many states rights’ champions on
the Right, who emphasize the Tenth Amendment, see the Commerce Clause
as an intrusion on the sovereignty of the states, and as a means for
the federal government to enact laws that violate states’ sovereignty.

[12] See the section “Cases” on its website. http://www.cir-usa.org/cases.html.
CIR lost the Illinois State University case, while the Miami University
case is pending. CIR also challenged the disbursement of $3 million
by the University of Minnesota to female faculty members to resolve
gender disparities in salary. The case, Maitland v. University of Minnesota,
is pending.

[13] See Carter, “On A Roll(back),” op. cit., pp. 56-57.

[14] Robert Jensen’s article on White privilege first appeared
in the Baltimore Sun on July 19, 1998. See http://www.utexas.edu/coc/journalism/SOURCE/faculty/facul/jensen's_article.html

[15] See Sharon Martinas, “Shinin’ the Lite on White Privilege:
Defining the Problem, Why Can’t We Just Get It Together?” 1998.
Emphases in the original. See http://www.prisonactivist.org/cws/sharon.html

[19] Dalit, meaning broken or downtrodden, is the name chosen and
preferred by the Dalit people in India who were formerly called “untouchable.”

[20] Cited in Upendra Baxi, “Law, Democracy and Human Rights,” in
Smitu Kothari and Harsh Sethi, eds., Rethinking Human Rights: Challenges
for Theory and Action (New Delhi: Lokayan, New York: New Horizons Press,
1989), pp. 101-117, 102. The concept and practice of one person, one
vote, while certainly a foundational feature of political equality,
does not amount to political equality. Particularly so in a society
that is institutionally racist, sexist, and casteist, or that is skewed
in terms of wealth and control over resources.

[21] Hardisty, “Affirming,” op. cit., p. 4.

[22] D’Souza claims that the “charge of institutional
racism and the expectation of proportional representation arise directly
out of cultural relativism.” See Dinesh D’Souza, The End
of Racism: Principles for a Multiracial Society (New York: The Free
Press, 1995), pp. 289-290.

[23] Hardisty, “Affirming,” op. cit., p. 4.

[24] Cited in Ibid. See Amy Ansell, New Right, New Racism (New York:
New York University Press, 1997).

[25] See David Brudnoy, “It’s time to end the bi-lingual
ed scam,” Boston Metro, March 26, 2002, p. 6. Interestingly,
Brudnoy, who is also an openly gay radio talk show host, was recently
invited to emcee an event announcing the Boston scout group’s
newly created diversity awareness award, that recognizes scouts, scout
leaders, and organizations that promote diversity on the basis of race,
ethnicity, religion, and sexual orientation. See, Tony Giampetruzzi, “Boston
Scout group sends strong message of gay-inclusiveness,” in newsweekly,
vol. 11, issue 43, June 19, 2002, p. 37.

[29] Nathan Glazer, Affirmative Discrimination: Ethnic Inequality
and Public Policy (New York: Basic Books, 1975). Glazer has since changed
his position on some of these issues. See Nathan Glazer, We Are All
Multiculturalists Now (Cambridge, MA: Harvard University Press, 1997).

[36] Hardisty draws a distinction within right-wing libertarianism
between the paleolibertarians who subscribe to Old Right ideology and
the rightist libertarians who are more moderate. See Hardisty, “Libertarianism
and Civil Society,” op. cit., p. 6. There is also left-wing libertarianism,
which informs the American Civil Liberties Union’s (ACLU) perspective
and policies.

[42] Nussbaum’s basic capabilities (first worked out together
with Amartya Sen) that are essential for humans to function are a combination
of inherent individual capacities and external conditions that enable
the utilization of those capacities. See Martha Nussbaum, Women and
Human Development: The Capabilities Approach (New York: Cambridge University
Press, 2000).

[43] For instance a CIR press release states, “The lawsuit contends
that such disparities were a consequence of racial preferences in the
admissions process that violate the 14th Amendment's Equal Protection
Clause and Title VI of the Civil Rights Act of 1964.” See “CIR
begins second lawsuit against University of Michigan,” http://www.cir-usa.org/press_releases/grutter_v_bollinger_pr.html
Title VI of the Civil Rights Act states that: No person in the United
States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial
assistance.

[44] See http://www.constitutioncenter.org/sections/work/educlinks.asp

[45] Ibid.

[46] See http://www.cir-usa.org/legal_docs/smith_v_washington_certpet.PDF

[49] See Matt McGann, “Late-Breaking: MIT Involved in Brief
to Supreme Court Supporting Affirmative Action,” http://web.mit.edu/afs/athena.mit.edu/activity/o/observer/www/1-1/articles/mm3.html.
One of the most ringing endorsements of diversity in higher education
is a study by the former presidents of Princeton (William G. Bowen)
and Harvard (Derek Bok) universities. See William G. Bowen and Derek
Bok, The Shape of the River: Long-Term Consequences of Considering
Race in College and University Admissions (Princeton: Princeton University
Press, 1998).

[50] See http://www.constitutioncenter.org/sections/work/educlinks.asp

[51] Ibid.

[52] See Carl E. Brody, Jr., “A Historical Review of Affirmative
Action and the Interpretation of Its Legislative Intent by the Supreme
Court.” See http://www3.uakron.edu/lawrev/brody.html

[53] See Neil Gotanda, “A Critique of ‘Our Constitution
is Color-Blind’,” in Kimberlé Crenshaw, et al.,
eds., Critical Race Theory, op. cit., pp. 257-275. Critical Race Theory
emerged in the 1980s as a field of legal scholarship distinct from
both liberal and conservative legal theory. It built on both the work
of the Civil Rights Movement of the 1960s and Critical Legal Studies
that initially radicalized legal theory in the 1970s. See “Introduction,” in
Kimberlé Crenshaw, et al., eds., Critical Race Theory, op. cit.,
pp. xiii-xxxii.

[54] Gotanda, “A Critique,” op. cit., p. 258.

[55] Ibid., pp. 262-263.

[56] Ibid.

[57] Ibid., p. 263.

[58] Ibid.

[59] Ibid., p. 264.

[60] Ibid., pp. 263-264.

[61] Ibid., p. 264.

[62] Ibid.

[63] See Theodore Cross, “African-American Opportunities in
Higher Education: What are the Racial Goals of the Center for Individual
Rights?” Journal of Blacks in Higher Education, no. 23 (Spring
1999), pp. 94-99, 95-96.

[64] Ibid.

[65] Ibid.

[66] Ibid.

[67] Ibid. Emphasis in the original.

[68] Diaz, “Mischief Makers,” op. cit.

[69] See the amicus curae brief filed by CIR at http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/94.pdf.
The Boy Scouts were claiming the right to association under the First
Amendment to exclude Dale.

[70] See CIR’s press release on the ruling at http://www.cir-usa.org/press_releases/dale_v_boy_scouts_pr2.html

[71] See the dissent at http://supct.law.cornell.edu/supct/html/99-699.ZD.html

[77] See Sally Covington, Moving a Public Policy Agenda: The Strategic
Philanthropy of Conservative Foundations (Washington, DC: National
Committee for Responsive Philanthropy, July 1997). Covington’s
report lists CIR as having received over $1.2 million in 13 grants
from these conservative foundations between 1992-94. See p. 29. See
also the mediatransparency.org website for details on CIR funding sources.
http://www.mediatransparency.org/search_results/info_on_any_recipient.asp?57.
Michael Greve was also a program officer at the Smith Richardson Foundation.
See, Peggy Walsh-Sarnecki, “The Men who would End Affirmative
Action: U-M is next Target for Outspoken Crusaders,” Detroit
Free Press, August 25, 1998, p. 1A.

[78] Diaz, “Mischief Makers,” op. cit., p. 18.

[79] Lee Cokorinos, Connie Montoya, et al., The Assault on Diversity:
Behind the Challenges to Racial and Gender Remedies (New York: Institute
for Democracy Studies, 2000), p. 14. For CIR coverage, see pp. 12-15.
Assault on Diversity looks at both the political and the legal battle
against diversity. Groups such as Ward Connerly’s American Civil
Rights Institute and Linda Chavez’s Center for Equal Opportunity
are in the political battle, while CIR is one of the main arms of the
legal battle. On Pioneer funding see also Cross, “African-American
Opportunities,” op. cit., pp. 97-99. Cross writes that CIR has
received Pioneer grants on three occasions.

[83] See Covington, Moving a Public Policy Agenda, op. cit., and also
David Callahan, $1 Billion for Ideas: Conservative Think Tanks in the
1990s (Washington, DC: National Committee for Responsive Philanthropy,
March 1999).

[88] See Doug Brugge, “Pulling Up the Ladder: The Anti-Immigrant
Backlash,” Defending Immigrant Rights: An Activist Resource Kit
(Somerville, MA: Political Research Associates, 2002), pp. 1-17. This
is an updated version of the original article that appeared in The
Public Eye, vol. 9, no. 2 (Summer 1995), pp. 1-10.

[90] See the Fall 2001 issue of The Public Eye, vol. 15, no. 3. This
was a special issue after September 11, 2001, dealing with nationalism
and nativism in the United States.

[91] The Federalist Society was founded in 1982 and is based in Washington,
D.C. See Lee Cokorinos and Julie R. F. Gerchik, The Federalist Society
and the Challenge to a Democratic Jurisprudence (New York: Institute
for Democracy Studies, 2001). See also the mediatransparency.org website
an article on the Federalist Society that first appeared in the March
2000 issue of the Washington Monthly, http://www.mediatransparency.org/Stories/feddies.htm;
Neil Lewis reports that 17-20 of the 70 candidates interviewed until
April 2001 were recommended directly by the Federalist Society’s
headquarters. See Neil A. Lewis, “Bush to Reveal First Judicial
Choices Soon,” New York Times, April 24, 2001.

[92] See the press release by Nan Aron, president of the Alliance
for Justice, criticizing the Bush Administration for excluding the
ABA.http://www.afj.org/jsp/news/abarelease.html

[94] Ibid. The report also notes that while Clinton appointed more
non-White and female judges than all of his predecessors combined,
his appointments did not necessarily restore the ideological balance
in the judiciary as most of his nominees were moderate centrists.

[95] On some of George W. Bush’s earliest nominees who are neither
moderate nor centrist see the People for the American Way website http://www.pfaw.org/issues/judiciary/reports/bush_judic/nominees.html